in section 2364, public lands were disposed of under the homestead and pre-emption laws, and, when the Commissioner so directed, certain lands were brought into market and sold to the highest bidder.

Said section being limited by its own terms to the manner of dispo sition last mentioned, has no application except in those cases where the Commissioner in the exercise of his discretion under the law, had brought lands into the market to be sold at public auction. This construction is obvious unless it be held that the act of 1856, contemplates that no military reservation in Florida shall be disposed of in any other way than by public sale. I am of the opinion that the principle of construction employed in the decision above mentioned, is untenable.

Under the authority vested in the Commissioner of the General Land Office by the acts of 1846 and 1856, and by section 2364 of the Revised Statutes, he might have brought into market and disposed of the same at public auction, the lands included in the Fort Brooke military reservation; but he was not compelled to do so and up to this time has made no effort to have the same disposed of in that manner. It was legitimate, also, to dispose of said reservation under the homestead and pre-emption laws, and when the same was restored to the public domain, as hereinbefore mentioned, it was subject to entry under said laws. Section 2364 of the Revised Statutes, has no application to the disposition of the same unless the Commissioner of the General Land Office, in the exercise of his discretion, has seen proper to bring said reservation into market.

The Fort Brooke military reservation, at one time, included all the lands within sixteen miles square, and in 1883 it had been reduced by former relinquishment to less than one hundred and fifty acres. Almost the whole of said original reservation has been disposed of under the homestead and pre-emption laws. The fact that the land in controversy has become very valuable is no reason for the introduction of a different rule from that which has been uniformly observed by the Department in the disposition of other reservations prior to the act of 1884.

I am of the opinion, therefore, that the lands in controversy were open to entry from March 22 to April 2d, 1883, the day on which the local officers were instructed to allow no entries on the same.

The claims of all the other parties at interest are based upon applications made on and subsequent to the 22d day of March, 1883. The homestead entry of E. S. Carew, the husband of the claimant Mrs. L. W. Carew, was the first application made after the lands were restored to the public domain, and unless there was some sufficient legal reason for the rejection, should have been allowed.

In the departmental decision complained of it is held as follows:

The finding of the local officers and your office, that the entry of Carew and the settlement of Mather were not made in good faith, is supported by the evidence, and their claims were properly rejected.

I have searched the record with a view of ascertaining, if possible, the disclosures therein that go to impeach the good faith of E. S. Carew, and I have failed to find any admissible or competent evidence that justifies the conclusion reached in said decision.

The rejection of the claim of Mrs. L. W. Carew seems to have been predicated upon the testimony of J. T. Lesley, who appeared as witness in behalf of the city of Tampa.

Lesley testified that Senator Call notified him that he, the Senator, had instructed E. S. Carew to make pre-emption or homestead upon the reservation, and had instructed one Carlisle to make cash entry on the same, in order to secure it for the people of Tampa. He also informed witness that he had instructed Dr. Carew to draw upon him, Call, for the money. This Carew did. Witness paid the draft drawn by Carew upon Senator Call. A few days afterward Carew informed witness that he had received a telegram from Senator Call to make homestead entry upon said reservation and to draw upon him, Call, for the money. Carew told witness that he would turn over the homestead or pre-emption to the people of Tampa or would continue the same, or prove it up. Witness explained to Carew why it was that he was requested to make the homestead, which was to forestall speculation until Congress could pass an act donating it to the city of Tampa. Witness and others thought best to have the reservation homesteaded and to let the town have what it wanted. Witness explained to Carew, who was interested in the scheme, what amount witness thought the city of Tampa would be satisfied with. Witness, after consultation with parties interested and members of the town council, thought it best that, if Dr. Carew would agree to carry out, in good faith, such an arrangement and divide up the reservation as per agreement, he, Carew, should continue on the place. Witness told Dr. Carew that, and Carew acquiesced in the arrangement.

Carew, witness and others, intended at the end of six months, to commute this land, put it in under the commutation act, and divide it out among the parties interested as per agreement. Witness afterwards called upon Carew to have an interview about the matter, and, to his astonishment, Carew refused to do anything.

Carew then said he was the only person who had any rights and that he intended to retain them. Witness answered that while Carew might defeat the town of Tampa and the "balance of us" from getting this land, or any part of it, witness thought "we would be able to do the same with him," having no disposition to do anything of the kind but simply asking that the agreement thus made be carried out in good faith.

Carew refused to do so. Carew remained in the house secured for him up to the time of his death; his widow has lived in the same house ever since. Witness had no controversy or correspondence with Carew on or before the 22d day of March, 1883, relative to the reservation or

homestead thereon. According to the agreement, witness had with Carew, the reservation was to be divided into six parts: Carew to have one; the town of Tampa one; W. B. Henderson one; S. M. Sparkman one; J. A. Henderson one; and witness one. Tampa was to make its selection and the balance to be divided equally among the other five. Parties interested were to pay all the expenses and Dr. Carew was to comply with the homestead law in regard to residence and cultivation. After the failure to secure the land in 1883 there was a scrip entry made upon it by W. B. Henderson, and by him the same proposition was made to the city of Tampa. Witness owned an interest in this scrip after that time; witness's son now owns said interest.

Carew died in 1886.

It will be observed that at the time of the trial Carew had been dead several years, and that the witness was an interested party in the transaction in regard to which he testified.

In the statute of Florida, Chap. 101, Sec. 24, it is provided as follows: No person offered as a witness in any court or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceedings, or because he is a party thereto; provided, however, that no party to such action or proceeding, nor any person interested in the event thereof, nor any person from, through, or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any transaction, or communication between such witness and the person at the time of such examination deceased, insane or lunatic, against the executor, administrator, heir-at-law, next of kin, assignee, or committee of such insane person or lunatic;

etc.

Besides it will be observed that the witness testified that he and Carew were parties to a scheme which involved perjury on the part of Dr. Carew and subornation of perjury on the part of the witness himself. When Dr. Carew made his homestead entry he was compelled to swear that the same was done not for the benefit of any other person, persons, or corporation. He was also compelled to swear that he was "not acting as agent for any person, corporation or syndicate in making such entry, nor in collusion with any person, corporation or syndicate to give them the benefit of the land entered or any part thereof," etc.

The scheme testified to by the witness was utterly inconsistent with the affidavit which had to accompany the homestead application of Carew, and the moral culpability implied on the part of a witness who, according to his own showing, testified in a revengeful spirit, because the other party to such a contract refused to carry out the same, is sufficient to discredit his testimony in the absence of any other legal reason.

In my opinion the testimony of J. T. Lesley, in so far as it goes to impeach the good faith of E. S. Carew, is inadmissible from a legal standpoint, and harmless because of its other infirmities. There being no other obstacle in the way of the claim of Mrs. Carew, I am of the opinion that it should be allowed.

The legislature of Florida in the year 1889 merged the towns of Tampa and North Tampa into one corporation and extended the limits of the city so as to include the reduced military reservation, and upon this legislative enactment the city of Tampa bases its claim to said reservation to be used as a public park and for other purposes.

The testimony failing to show that any considerable portion of the same was used and occupied for trade and business, the said claim was properly rejected in the opinion under review.

To avoid confusion I note that by the diagram approved by your office and transmitted to the local office in 1883, Fort Brooke was divided into seven lots, numbered 8, 9, 10, 12, 13, 14 and 16. According to the public survey, lots 8, 9, and 10, fall within Sec. 24, T. 29 S., R. 18 E.; lots numbered 12, 13, and 14, fall in Sec. 19, T. 29 S., R. 19 E., and lot numbered 16 falls within Sec. 18, T. 29 S., R. 19 E., Gainesville, Florida.

On the 22d day of March, 1883, the day on which the lands included in the Fort Brooke reservation were opened to entry, Louis Bell was residing upon that subdivision known as lot No. 8, Sec. 24, T. 29 S., R. 18 E., intending to make the same his permanent home. He was qualified and sought to assert his settlement rights by an application to file prior to the order in which the local officers were directed to allow no entries upon said lands. The claim of the heirs of Bell might properly be rejected upon the technical ground that the land in controversy was, at that time, included in the homestead entry of Carew, but inasmuch as said homestead claim was subsequently limited so as to exclude the lot or subdivision upon which Bell resides, and inasmuch as there is no other claimant to said legal subdivision who has a superior right to Bell, and for the further reason that his good faith calls for the exercise of the supervisory power of the Department, the same will be upheld, but limited to said subdivision.

The telegram sent from your office on the 2d of April, 1883, to the local officers directing them to allow no entries upon lands within said reservation, was doubtless made upon the idea that said lands could not be disposed of otherwise than by being brought into market and sold at public auction.

There being now no reason why said order should remain longer in force, especially in view of the fact that the claims of Carew and Bell, both of which were of record or offered prior to the date of said order, include the most valuable lands in the reservation aforesaid, the same is hereby revoked.

The claims of Julius Cæsar to lot No. 13, and of Martha Stillings, wife and heir of Andrew Stillings, deceased, to lot No. 12, of Sec. 19, T. 29 S., R. 19 E., and that of Frank Jones to lot No. 16, Sec. 18, T. 29 S., R. 19 E., are in the same condition as that of Louis Bell, with the exception that said claims were asserted subsequent to the date of the

order from your office directing that no entries be allowed upon the lands of said reservation.

The settlement rights of Cæsar, Stillings, and Jones had attached prior to the date of said order, and were simply held in abeyance by it. You will, therefore, direct that their claims be allowed to the lots or subdivisions upon which they respectively resided, should there be no intervening reason in either case for a different disposition of said lots.

The claim of W. B. Henderson to locate Gerard scrip on lots Nos. 8 and 9, Sec. 24, T. 29 S., R. 18 E., must be denied on account of its conflict with the prior rights of Louis Bell and Mrs. Carew.

The declaratory statement of Daniel Mather was properly rejected in the light of the record which discloses the fact that he never contemplated making his permanent home upon any land inside the Fort Brooke reservation, and that he abandoned his claim in 1885.

The remaining lot in said reservation, to wit, lot No. 14, Sec. 19, T. 29 S., R. 19 E., was settled upon by E. B. Chamberlin on the 7th of July, 1883, and upon that settlement he bases his claim.

The order emanating from your office directing the local officers to allow no entries, was no bar to initiating a settlement claim, and said order having been herein revoked, his claim will be allowed to said lot, should there be no other legal obstacle in the way of his perfecting the

same.

It will be observed that I have recognized the settlement rights of Bell and others, in this case, and the question might arise that since the settlement of Bell, for instance, was made prior to the homestead entry of Carew, and his rights thereunder were asserted by him within the time prescribed by law, that his claim would be superior to that of Carew, whose settlement began from his entry.

A settler is defined to be

A person who intending to initiate a claim under any law of the United States, for the disposition of the public domain, does some act connecting himself with the particular tract claimed, said act being equivalent to an announcement of such intention, and from which the public generally may have notice of his claim. (2L. D., 628.)

In the light of this definition, the record discloses no act on the part of Mr. Bell, or the other claimants, which connects him or any of them, "with the particular tract claimed," outside of the lots or subdivisions upon which they respectively reside, until after the same was covered by Carew's entry.

I recognize the rulings of the Department that where an entryman is claiming a quarter-section of land and has made settlement upon one forty-acre tract of the quarter-section which he claims, that his settlement rights will be construed to cover the whole of the technical subdivision.

This rule, however, is limited by the condition that it must appear that the entryman intended to claim the particular technical subdivision which embodies the tract upon which he has made settlement.